Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/126

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Shrinkwrap and click licenses refer to unsigned agreements between a purchaser of digital products or software and the creator or vendor that define the respective rights of the parties. Shrinkwrap refers to the plastic wrap that encases software; upon opening the program the first thing the user sees is the license agreement that sets out the terms of use. A purchaser who opens the shrinkwrap or other packaging, or begins using the software, is presumed to have read the license and assented to its terms.

Click licenses are found on Web-based products. The user cannot access the information or use the program until he or she agrees to the terms by clicking a box. Licenses frequently include terms that prohibit uses otherwise permitted under copyright law or state consumer protection law, such as the right to make fair use of the work. Courts are split on whether shrinkwrap or click licenses are enforceable.

Compare Vault v. Quaid, a 1988 decision of the United States Court of Appeals for the Fifth Circuit, with Pro-CD v. Zeidenberg, a 1996 decision from the United States Court of Appeals for the Seventh Circuit. In Vault, the court held unenforceable a license provision that was not disclosed to the purchaser at the time of purchase. By contrast, the Pro-CD court held that shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general. The fact that copyright law permits uses that might be precluded under a license did not convince the court to reach a different conclusion. Likewise, in Bowers v.